United States v. Madrid-Becerra
| Decision Date | 01 October 2021 |
| Docket Number | No. 19-10458,19-10458 |
| Citation | 14 F.4th 1096 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jose Yobani MADRID-BECERRA, AKA Jose Jobane Madrid Becerra, AKA Jose Madrid-Mesena, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael L. Burke (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Defendant-Appellant.
Seth T. Goertz (argued), Assistant United States Attorney; Krissa M. Lanham, Appellate Division Chief; Michael Bailey, United States Attorney; United States Attorney's Office, Phoenix, California; for Plaintiff-Appellee.
Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges, and Kathleen Cardone,* District Judge.
Defendant Jose Madrid-Becerra appeals from his sentence for a conviction of illegal re-entry under 8 U.S.C. § 1326(a). He argues that the district court erred by applying United States Sentencing Guidelines (U.S.S.G. or Guidelines) § 4A1.1(d) to raise his criminal history score and, consequently, his Guidelines range. The crux of Madrid-Becerra's argument is that he did not commit his illegal re-entry offense "while under any criminal justice sentence," as required by § 4A1.1(d).
Because the district court correctly applied § 4A1.1(d), we affirm Madrid-Becerra's sentence.
In June 2013, Madrid-Becerra was convicted of solicitation to commit transportation of marijuana for sale under Arizona law and sentenced to two and a half years. After serving a portion of his sentence in prison, he was granted early conditional release under Ariz. Rev. Stat. § 41-1604.14 (repealed Aug. 6, 2016), known as the "half-term to deport" program. That statute permitted the Arizona Department of Corrections (ADOC) to "release a prisoner to the custody and control of the United States immigration and customs enforcement" if ADOC receives an order of deportation, the prisoner has served at least one-half of the sentence imposed, and the offense meets certain other requirements. See Ariz. Rev. Stat. § 41-1604.14(A). It also provided that "[i]f a prisoner who is released pursuant to this section returns illegally to the United States, on notification from any federal or state law enforcement agency that the prisoner is in custody, [ADOC] shall revoke the prisoner's release." Id. § 41-1604.14(B). Shortly after ADOC released Madrid-Becerra in 2014 to the custody of the United States pursuant to § 41-1604.14, he was removed to Mexico.
Madrid-Becerra re-entered the United States without inspection in June 2016. In December 2017, Madrid-Becerra was arrested by local Arizona police on assault charges. He was later convicted of attempted aggravated assault and sentenced to eighteen months imprisonment. The Maricopa County Superior Court ordered his sentence to run concurrent with the remainder of his sentence from his 2013 offense.
In July 2019, Arizona released Madrid-Becerra to U.S. Immigration and Customs Enforcement (ICE) custody, which detained him on a felony complaint. He was later indicted for illegal re-entry and pleaded guilty to the offense. At sentencing, the Pre-Sentence Report (PSR) prepared by the United States Probation Office assessed a criminal history score of eight, two points of which were due to the PSR's conclusion that Madrid-Becerra "committed the instant offense while under a criminal justice sentence for [his 2013 conviction for] solicitation to commit transportation of marijuana for sale." U.S.S.G. § 4A1.1(d). His criminal history score placed his Guidelines range for custody at 46 to 57 months, though the PSR recommended a downward departure to 27 months.
Madrid-Becerra objected to the PSR's assessment of the "two-level enhancement for committing the instant offense while under a criminal justice sentence" because Arizona's "half-term to deport" program "does not have any custodial or supervisory component." He argued that without the extra two points, his Guidelines range would have been 37 to 46 months. The district court heard argument on this objection at sentencing but found that the enhancement was applicable. The court thereafter sentenced Madrid-Becerra to 27-months imprisonment with credit for time served, followed by three years of supervised release. His projected release date is August 3, 2021.
We have jurisdiction to review Madrid-Becerra's sentence under 28 U.S.C. § 1291. "We review de novo the district court's interpretation of the Sentencing Guidelines," including the calculation of the criminal history score. United States v. Gonzalez , 739 F.3d 420, 422 n.1 (9th Cir. 2013) (citing United States v. Lichtenberg , 631 F.3d 1021, 1024 (9th Cir. 2011) ). We review "the district court's application of the Sentencing Guidelines to the facts of this case for abuse of discretion, and the district court's factual findings for clear error. United States v. Stoterau , 524 F.3d 988, 997 (9th Cir. 2008) (citation omitted).
Madrid-Becerra argues that the district court improperly applied U.S.S.G. § 4A1.1(d) because he was not "under any criminal justice sentence" when he committed his illegal re-entry offense. First, Madrid-Becerra argues that his early release did not provide for supervision of, or place restrictions or conditions on, his subsequent actions. Second, he argues that because Arizona repealed its "half-term to deport" program in 2016, ADOC lacked authority to reinstate his sentence in 2017. Third, he asserts that the district court clearly erred in determining that he had notice that his return to the United States would result in reinstatement of his sentence and that his sentence was actually reinstated. We disagree on all counts.
U.S.S.G. § 4A1.1(d) provides that two points should be added to the defendant's criminal history score "if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." The commentary states that "a ‘criminal justice sentence’ means a sentence countable under § 4A1.2 ... having a custodial or supervisory component, although active supervision is not required for this subsection to apply ." U.S.S.G. § 4A1.1, cmt. n.4 (emphasis added). The commentary specifically notes that "a term of unsupervised probation would be included, but a sentence to pay a fine, by itself, would not be included." Id.
Madrid-Becerra asserts that there were no restrictions or conditions placed on his subsequent actions after his release. This is plainly incorrect. Ariz. Rev. Stat. § 41-1604.14(B) provided that early release "shall" be revoked if the defendant "returns illegally to the United States" and the ADOC receives notification from "any federal or state law enforcement agency" that the defendant is in custody. This is both a restriction and a condition. The benefit of Arizona's early release could only be enjoyed so long as Madrid-Becerra did not re-enter the United States illegally. If he re-entered illegally, his early release was subject to revocation by ADOC, and he would have to serve the remainder of his sentence. This condition is sufficient to supply the "supervisory component" required by U.S.S.G. § 4A1.1(d). See United States v. Franco-Flores , 558 F.3d 978, 981–82 (9th Cir. 2009).
Madrid-Becerra argues that there must be some active form of supervision to trigger the application of § 4A1.1(d). The comment to § 4A1.1 is quite clear on this point: "active supervision is not required for this subsection to apply." U.S.S.G. § 4A1.1, cmt. n.4. Our decision in United States v. Ramirez-Sanchez , 338 F.3d 977 (9th Cir. 2003), is on point. In that case, upon his release from custody for having committed an unspecified crime, Ramirez-Sanchez was deported without having gone into active probation supervision. Id. at 979. Like Madrid-Becerra, Ramirez-Sanchez argued that U.S.S.G. § 4A1.1(d) did not apply to him because he was not supervised in any way following his deportation. Id. We explained that "a term of supervised release remains intact after a defendant's deportation." Id. at 980. We noted that Congress, in a section entitled "Inclusion of a term of supervised release after imprisonment," has provided:
If an alien defendant is subject to deportation, the court may provide, as a condition of supervised release, that he be deported and remain outside the United States, and may order that he be delivered to a duly authorized immigration official for such deportation.
18 U.S.C. § 3583(d). We thus concluded that despite the lack of active supervision, "deportation does not terminate supervised release ... [or] probation." Ramirez-Sanchez , 338 F.3d at 981 ; see also United States v. Gonzalez , 739 F.3d 420, 423–24 (9th Cir. 2013) (); United States v. McCrudden , 894 F.2d 338, 339 (9th Cir. 1990) (per curiam) ( ).
Madrid-Becerra argues that nothing "in the record suggests that ... he was under any form of supervision by any probation officer or ADOC employee." But even assuming Madrid-Becerra was not subject to court-ordered conditions of release, that is not the issue. Rather, the question is whether Madrid-Becerra was subject to any condition that related to a "custodial or supervisory component" of his sentence. He was. Madrid-Becerra was released subject to the statutory condition that he not illegally re-enter the United States. Otherwise his release would be...
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